IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 8 January 1987 I issued a preliminary decision in this matter dismissing a Tasmanian Public Service Association (TPSA) threshold argument, that this application should not be determined on the merit. The TPSA submission was directed at the discretion given by Section 21(2)(c) of the Industrial Relations Act 1984, allowing for the Commission to dismiss or refrain from the further hearing of a matter on certain specified grounds.

At the request of the applicant, the Tasmanian Prison Officers' Association (TPOA), the application was relisted for hearing on the merit on 13 January 1987.

T.642 of 1987, an application lodged by the TPSA going to the same subject matter was joined for hearing purposes.

Both applicants sought and were granted leave to amend their claims.

The primary purpose of both applications is to include in the Prison Officers Award (the Award) the new classification, Deputy Chief Superintendent. However different salary levels were sought as follows:

TPOA application:

* Current salaries for the Deputy Superintendent classification.

TPSA application:

At the conclusion of proceedings Mrs. Herbert appearing for the TPOA amended her application to have the above salary levels read the same as those of the TPSA.

The relevant background to this matter is as follows:

• in late 1984 or early 1985 Parliament passed legislation which amongst other things created two new positions in the prison service;

• the new positions are those of Chief Superintendent and Deputy Chief Superintendent;

• in January 1986 the position of Chief Superintendent was filled at a salary level equating to Administrative and Clerical Employees Class XIV in the Clerical Employees Award;

• following the normal practice, including the determination of appeals, the position of Deputy Chief Superintendent was filled on 12 January 1987, the approved salary level being that of Administrative and Clerical Employees Class X in the Clerical Employees Award;

• on 11 December 1986 the TPOA lodged with the Registrar an application (T.608 of 1986) seeking to vary the Award, by including the classification Deputy Chief Superintendent with the top salary level for the existing classification of Deputy Superintendent;

• following proceedings on 16 December 1986 I issued the decision referred to earlier, on 8 January 1987;

• on 13 January 1987 the TPSA lodged an application (T.642 of 1987) to vary the Award.

The TPOA position in this matter is that the classification Deputy Chief Superintendent should be included in the Award. It is that organization's view that the Prison Officers Award is the appropriate award to contain such a classification and salary and that it is not appropriate simply to select a salary level from the Clerical Employees Award.

The primary stance of the TPSA is that the Deputy Chief Superintendent is appropriately "covered" by the Clerical Employees Award and it is therefore not necessary or desirable for the Commission to grant the TPOA application. It was further submitted by the TPSA that their application had been lodged to protect the interests of their member i.e. the Deputy Chief Superintendent. In other words if the Commission decided that the classification should be included in the Award then it should be at the level of salary already approved and being paid by the administration.

Mr. Patmore appearing for the Minister for Public Administration strenuously opposed the TPOA application.

A summary of the main grounds relied on by Mr. Patmore is as follows:

• the clear intention of the Parliament was that the positions of Chief Superintendent and Deputy Chief Superintendent be management positions; incumbent in that decision is the intention that they be "covered" by the Clerical Employees Award;

• the Clerical Employees Award allows for a much broader selection of personnel than does the Prison Officers Award;

• the two most senior day-to-day positions within the Prison Service have always been outside the Prison Officers Award;

• the desired qualifications for the position of Deputy Chief Superintendent are quite different from those required of any position covered by the Prison Officers Award. Similarly the duties are significantly different;

• the Prison Officers Award is restrictive in terms of the selection of a person for the position of Deputy Chief Superintendent. Any decision to include the classification in the Award would also require consideration of consequential variations to remove those restrictions;

• it is the considered view of the Law Department that the Clerical Employees Award is the appropriate award from which salaries should be selected;

• having gone through the appropriate and proper channels in accordance with the State Service Act to achieve an appointment, there is no need to vary the Award as sought by the TPOA;

• both applications should be dismissed;

In coming to a conclusion in this matter I think it important that I indicate that I see the issue to be decided as being whether or not a new classification of Deputy Chief Superintendent should be included in the Award.

I can understand the view of TPOA members expressed by Mrs. Herbert in her concluding submission as follows:

However, I believe Mrs. Herbert's reluctant (perhaps) amendment to her original application supports my view and is in effect an acknowledgement of it on her part.

I can also understand the TPOA scepticism and concern about whether or not the position of Deputy Superintendent will be filled either in the short or long-term future.

In addressing the submissions of Mr. Patmore in this matter I must say that I find it difficult to accept that the Parliament or even Cabinet considered the question of award coverage for the position of Deputy Chief Superintendent. I would have thought such matters would be left for others, when questions of detail were being considered.

I have no doubt that the legislators when considering the creation of this position intended that it be a management function. However, I do not see that the question of award coverage interferes with that intention in any way. Many management functions and positions are undertaken by employees who are covered by the same award as those they supervise.

I accept the submissions highlighting some restrictions imposed by the Prison Officers Award going to the selection of the most suitable person for the position. However, such restrictions can be readily addressed by way of appropriate consequential variations following any decision to include the new classification in the Award.

The question of custom and practice while important in the industrial arena, in this case is not persuasive. In any case it was claimed by the TPOA and not challenged that the two most senior day-to-day positions in the Prison Service were in the Award some time prior to 1973.

The question therefore remaining is; which is the appropriate award to provide for the classification Deputy Chief Superintendent?

Based on all of the information before me it is my opinion that the appropriate award to contain the classification and salary for the Deputy Chief Superintendent is the Prison Officers Award.

I will therefore include the classification in that award in due course.

However, the question of appropriate salary levels causes me some concern. For obvious reasons nothing has been put to me on this question. I therefore request the parties in further proceedings to supply me with appropriate information which will allow me to endorse current rates, or otherwise decide appropriate salary levels to go into the Award.

While the position of Chief Superintendent was not debated, nor even before me in these proceedings, it goes without saying that I hold similar views in relation to that classification.

These applications will be relisted at a convenient time and date to allow for their finalization.

JG King
COMMISSIONER